Union Pacific Railroad Co. v. Brotherhood of Maintenance of Way Employes Division of International Brotherhood of Teamsters, 122320 NEDC, 8:20-CV-516

Docket Nº8:20-CV-516
Opinion JudgeBrian C. Buescher United States District Judge.
Case DateDecember 23, 2020
CourtUnited States District Courts, 8th Circuit, District of Nebraska




No. 8:20-CV-516

United States District Court, D. Nebraska

December 23, 2020


Brian C. Buescher United States District Judge.

This matter came on for hearing on Plaintiff's Motion for Temporary Restraining Order, Filing 6, on the 23rd day of December, 2020. Plaintiff appeared by counsel of record. Defendant was provided notice of the motion and hearing and appeared by counsel. Having reviewed the pleadings, arguments, and evidence in the record, the Court concludes Plaintiff's Motion for Temporary Restraining Order is granted, and the Motion for Preliminary Injunction is set for further hearing.


Plaintiff Union Pacific Railroad Company (“Union Pacific”) is a Class I railroad operating and providing freight transportation services in twenty-three states and over 32, 000 miles. Filing 1 at 2; Filing 8-1 at 1. It is the second largest freight rail system in the United States, employs approximately 30, 000 people, and provides transportation services to approximately 10, 000 customers. Filing 8-1 at 2-3. Union Pacific provides transportation services to many manufacturers throughout the country, transporting a variety of goods, often on a time-sensitive basis. Filing 8-1 at 2-3. The railroad is the largest shipper of finished automobiles west of the Mississippi River and a major shipper of grain and coal. Filing 8-1 at 2-3. Union Pacific also transports products and raw materials used for public health and safety, some of which cannot be shipped by truck. Filing 8-1 at 3. Union Pacific generated around $54 million per day in operating revenue in the last fiscal year, equating to around $22 million per day net operating income. Filing 8-1 at 4.

Defendant, the Brotherhood of Maintenance of Way Employes Division of the International Brotherhood of Teamsters (“BMWED”) is a labor organization that represents Union Pacific employees in the craft or class of maintenance of way. Filing 1 at 2-3. BMWED and Union Pacific are parties to multiple collective-bargaining agreements (“CBAs”) that govern rates of pay, rules, and working conditions of Union Pacific employees represented by BMWED. Filing 1 at 3.

Union Pacific is a member of a collective-bargaining organization of large railroads represented by the National Carriers' Conference Committee (“NCCC”) of the National Railway Labor Conference (“NRLC”). Filing 1 at 4. NCCC negotiates with multiple unions nationwide to form collective-bargaining agreements on behalf of its member-railroads in what is known as national handling. On November 1, 2019, NCCC, acting on behalf of Union Pacific and other member-carriers, served BMWED with formal notice as required under the Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq., beginning the bargaining process designed to lead to a new collective-bargaining agreement between BMWED and the railroads. Filing 1 at 4;

see45 U.S.C. § 156 (“Carriers and representatives of the employees shall give at least thirty days' written notice of an intended change in agreements affecting rates of pay, rules, or working conditions . . . .”). BMWED served notice of its demands for increased pay and additional paid time off for the employees it represents on November 4, 2019, in accordance with the RLA. Filing 1 at 4; see45 U.S.C. § 156. NCCC and BMWED have remained in bargaining since the notices were served, and neither party has sought mediation services from the National Mediation Board. Filing 1 at 4.

On March 11, 2020, officers of multiple rail-workers' unions wrote the Chairman of the NRLC, Brendan Branon, requesting a coordinated response by NRLC-member railroads, including Union Pacific, to the COVID-19 pandemic. Filing 1-1. The unions requested the railroads adhere to Center for Disease Control (“CDC”) guidelines for mitigating COVID-19, that all attendance policies be suspended, that employees required to quarantine not be subject to discipline, and that quarantined employees receive paid leave for missed work. Filing 1-1 at 2-3. By letter dated March 13, 2020, Branon advised the unions that NRLC-member railroads were working with “their medical experts to implement and maintain prevention and response measures” consistent with CDC guidelines, and the unions should address their concerns with the individual rail carriers. Filing 1-2.

On March 19, 2020, BMWED President, Freddie Simpson, wrote to Union Pacific Chairman and CEO, Lance Fritz, and requested copies of COVID-19-related preventative and response plans and attendance policies concerning BMWED-represented employees. Filing 1-3. On March 30, 2020, Union Pacific Vice President of Mechanical and Engineering, Eric Gehring, responded to Simpson's letter, noting that Union Pacific was endeavoring to follow CDC guidelines and providing a link for Union Pacific's intranet site where the railroad's documents and instructions concerning its COVID-19 practices and policies were posted. Filing 1-4. Gehring also noted the fluidity of the situation, the need to check the intranet site often due to constant updates, and that Union Pacific had established a daily call with senior staff and union personnel to share information and hear the concerns of the unions. Filing 1-4. In late March, Union Pacific adopted a policy providing fourteen days paid leave for those employees who were directed to quarantine due to workplace exposure to COVID-19 and instituted policies requiring social distancing and face coverings. Filing 1 at 6.

On March 20, 2020, two other rail labor unions, the Brotherhood of Locomotive Engineers and Trainmen and the International Association of Sheet Metal, Air, Rail, and Transportation Workers - Transportation Division, filed a petition with the Federal Railroad Administration (“FRA”) seeking an emergency order pursuant to the Federal Railroad Safety Act of 1970 (“FRSA”), 49 U.S.C. § 20101 et seq., “to address safety conditions arising from the novel coronavirus (COVID-19) emergency” and to standardize and identify best practices in the industry for mitigating the spread of the virus and protecting employees. Filing 1-5 at 1. The FRA issued a Safety Advisory encouraging railroads to adhere to CDC guidelines and incorporate industry best practices regarding the pandemic. Filing 1 at 7. The FRA declined to issue an emergency order, however. Filing 1-6.

On July 2, 2020, BMWED's President again wrote to Union Pacific's Chairman and CEO, submitting for the railroad's consideration a thirteen-page “white paper” document detailing COVID-19 mitigation guidelines and procedures BMWED sought to have Union Pacific implement. Filing 1-7. Union Pacific's Vice President of Labor Relations, Rodney Doerr, responded on July 14, 2020, writing to BMWED that Union Pacific has a qualified pandemic team that assesses the latest pandemic-related information made available by the government, and the railroad's programs comply with CDC guidance. Filing 1-8. BMWED responded by letter dated July 21, 2020, maintaining its opinion that “the only way to achieve the necessary, safe working conditions” was to implement the testing, temperature taking, and contact-tracing procedures provided in the white paper BMWED sent with its July 2, 2020, letter which would provide paid leave for employees who tested positive, who were found to have a temperature exceeding 100.4 degrees, and who had been exposed to other employees who tested positive for COVID-19. Filing 1-9.

On September 24, 2020, BMWED wrote Union Pacific again, contending Union Pacific's “Covid-19 protocols don't go far enough to protect their valuable employees and the public” and again urging Union Pacific to adopt a safety program in line with the suggestions provided in the July 2, 2020, white paper. Filing 1-10 at 4. Union Pacific responded on October 6, 2020, informing BMWED that while its suggestions were appreciated and some would be implemented, Union Pacific would “not advance several BMWED outlined recommendations as they would have the detrimental effect of creating an atmosphere of false security.” Filing 1-11.

On December 18, 2020, Union Pacific received a letter, dated December 17, 2020, from BMWED General Chairman, Tony Cardwell. Filing 1 at 9; Filing 1-12. In the letter, Cardwell stated that if BMWED's demands were not met within ten days, “BMWED will declare a health and safety emergency because of the imminent threat to its members of serious injury or death, and will call for a cessation of work if UP does not take the necessary corrective actions.” Filing 1-12 at 4. BMWED made six demands including: (1) Union Pacific was to continue paying employees absent from work for “any . . . Covid-19 related reason”; (2) Union Pacific was to provide access to COVID-19 testing on the job site and on company time; (3) Union Pacific was to provide for employees to have their temperatures checked at the start of each shift, and any employee having a temperature exceeding 100.4 degrees was to be prohibited from work until obtaining a negative COVID-19 test and paid any time missed as a result; (4) any employee exposed to a person with COVID-19 in the workplace was to be quarantined for at least fourteen days, required to obtain a negative COVID-19 test before returning to work, and would receive pay for any time missed at work; (5) Union Pacific was to provide new face masks and hand cleaner each day, ensure no employee be required to use a locker room, vehicle, or machine that has not been sanitized within eight hours, and pay employees unable to work due to a lack of PPE or sanitization; and (6) Union Pacific was to require...

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